November 24, 2019

The Perilous Road to Impeachment

by Hal Gershowitz

Comments Below

While we believe President Trump’s now-infamous telephone conversation with Ukrainian President Volodymyr Zelensky was anything but “perfect,” we have questioned whether it constituted an impeachable offense and whether it was politically wise to pursue impeachment when impeachment will not produce a conviction in the United States Senate.

From our reading of history, there is nothing inherently wrong with a President requesting an investigation of a political rival if there is a legitimate reason for requesting that information. In other words, was the request for an investigation of Bursima (think Biden) made in good faith or in bad faith. While we believe it was made in bad faith to help President Trump in the 2020 election, that is a fact to be determined, and President Trump’s request for the investigation is not, a per se (as the lawyers like to say) cause for impeachment. Thomas Jefferson’s dogged pursuit of treason charges against Aaron Burr (for which Burr was acquitted) could be viewed as either a good-faith or a bad-faith prosecution of a political enemy, but no one talked of impeachment. Then again, Donald Trump is no Thomas Jefferson.

The quid pro quo issue seems intriguing, but not altogether persuasive. Quid pro quo, or something for something, depends largely upon a determination that there was no Ukrainian involvement in our 2016 election. There is plenty of testimony about a consensus within the intelligence community that pretty much debunks the claim of Ukrainian interference in the 2016 election. Nonetheless, the issue of Ukrainian interference is actually still under active investigation by John Durham, U.S. Attorney for the District of Connecticut, who has been commissioned by Attorney General Barr to look at the extent to which a number of countries, including Ukraine, played a role in the counterintelligence investigation directed at the Trump campaign during the 2016 election. Far-fetched? Perhaps, but the issue of possible Ukrainian interference has not been disposed of as far as the United States Justice Department is concerned. Therefore, it seems to us that an argument can (and will) be made that President Trump’s obsession with Ukraine cannot be entirely dismissed, at this point in time, as a bad-faith effort “to bribe” President Zelensky with military assistance.  

And even if the President is impeached, which seems quite likely, and the Senate fails to convict, which also seems quite likely, the potential for a sympathetic backlash among undecided voters is quite real, and history suggests, possibly quite likely. All of this raises the question of whether the Democrats are wasting a powerful election campaign issue with a less than powerful impeachment campaign issue. We understand that many people assume that the impeachment process will so damage President Trump that it will cost him precious votes in the general election, whether or not he is actually convicted in the United States Senate. That is a huge assumption; and perhaps, we believe, a reach too far.

Just as the Democrats pretty much control the course of the impeachment process in the House of Representatives, the Republicans will, pretty much, control the process in the Senate. The process in the House deliberately illuminates the worst side of President Trump. The process in the Senate is apt to do just the opposite, and the Senate process will be the last official word the voting public will hear.

Many Republicans, disingenuously, complain that the House proceedings are unfair because they demonstrate such a strong presumption of guilt. But the impeachment proceedings are very much akin to a grand jury, which is, essentially, a prosecutor’s forum. Its function is not to determine guilt or innocence, but rather to determine whether there are sufficient grounds for a trial (in the Senate) to determine guilt or innocence, that is, removal. Any articles of impeachment that are voted in the House, will be akin to indictments by a grand jury. The jury the President will face in the Senate will be, overwhelmingly, opposed to impeachment. Unlike criminal trials, however, there is no jury selection. The jury is already determined and, most certainly, so is the verdict.

Sadly, there is ample reason to be concerned that the failure to convict, or remove, President Trump in the Senate will leave the country more divided than ever. President Trump and a sizeable army of conservative commentators, a majority of US Senators and a large number of Republican Representatives will cry “failed coup attempt.” Millions of Americans will agree and many will simply have doubts about the entire affair. Meanwhile, the last Democrat standing after the Democratic primary bloodletting is over will have to deal with the aftermath of a failed attempt to remove the President.

Quite possibly, if not probably, the beneficiary of an impeachment that fails to remove the President will be President Donald J. Trump.

All comments regarding these essays, whether they express agreement, disagreement, or an alternate view, are appreciated and welcome. Comments that do not pertain to the subject of the essay or which are ad hominem references to other commenters are not acceptable and will be deleted.

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6 responses to “The Perilous Road to Impeachment”

  1. Andy Lask says:

    It seems censure would serve the Democrats better than impeachment based on the testimony so far and the likely outcome should impeachment in the house and a trial in the senate occur. Censure would receive more bipartisan support, lessen the divide in our country, remove any sympathy President Trump may garner as is likely under impeachment, shift the focus on the Democratic candidates in the lead up to Iowa (although based on this weeks debate I’m doubtful that’s a good thing), and reverse the direction of the polls in favor of President Trump. A lot can take place during the upcoming eleven months. So far the Democrats continue to be their own worst enemy and do everything possible to hand the President another four years.

  2. Perry says:

    After viewing countless hours of the hearings on impeachment
    and reviewing all the countless allegations thrown Trump’s way
    I cannot conceive how he can be convicted of anything other than
    his flamboyance and his instantaneous decisions on Foreign Policy.
    While he remains his own worst enemy he really means well for the country over all.

    I believe the Democrats have failed both in trying to impeach him
    but also to undermine his 2020 candidacy.

  3. Ted Goldman says:

    A grand jury is conducted in private. The mostly secret Stassi like spectacle, conducted by the tin-eared Democrats, was a very public political event increasing Trump’s political support.

    What has happened to this political party that many of us once revered?

  4. Robert borns says:

    Today’s column is one of your best ever. Several years ago I went to a dinner where mary Matilin and James carville spoke. He said his famous quote—it’s the economy stupid. Trump has the economy at his back. When the average person is working and getting higher wages they are Trumpers not Schiffers.

  5. sheila says:

    Perry — if you call extorting a weaker ally by threatening to withhold the hundreds of millions of dollars allocated by Congress for the defense of this ally, unless the “favor” is made, of investigating a primary political rival in the upcoming election — if you call this “flamboyance”, I would urge you strongly to re-listen to Adam Schiff’s closing remarks – he gives a straight up summary of where we are with this President and what it all means for those who refuse to see the truth.

    This President has committed an impeachable offense. Open and shut.

    Andy Lask –if only censure would have some impact. I think you know as well as I do, that this President would not care a whit about censure — he is without conscience or shame. He would view censure as laughable – an unspoken invitation to continue on his current track.

    Hal, as to your argument that impeachment in the House without removal by the Senate will only create sympathy for this President – that may be true. But it was imperative that Trump’s egregious behavior be presented out loud to the public by non partisan witnesses. The alternative (no impeachment inquiry) would be to tacitly condone this behavior, and that would be untenable as a matter of principle, to any of our elected officials with a shred of decency and integrity, and to anyone who cares about our Constitution. And it would promulgate the great unspoken endgame to the public which underscores all of Trumps actions: that this President is above the law.

    Is this the message the Republican Senators really want to send to the American public? I have to believe they all know the truth, and choose to do nothing to save our democracy. The 2020 election is coming up very quickly. It will be our last chance to fix our very broken system.

  6. ELIEZAR BENJAMEIN aka Leonard Sherman says:

    Will any democrate in the congress or any democratic please say anything nice about our President, has he done any thing good for our country as our elected leader. he is less than perfect but If you weigh good things that he has done, against all that he done that he is at fault for , then I have say as to his job performance so far JOB WELL DONE

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